The legal fight against Canada’s omnibus Bill C-45 and its environmentally focused companion, Bill C-38, has gone international, with an appeal to the United Nations Office of the High Commissioner for Human Rights (HCHR).
As the United Nations Committee to Eliminate Racial Discrimination (CERD) entered the second week of its 82nd session on February 18 in Geneva, the International Indian Treaty Council (IITC) and Attawapiskat First Nation, along with Chief Theresa Spence, announced the filing of an Early Warning and Urgent Action request with CERD. CERD is the body charged with analyzing, assessing and responding to violations of the Convention, and the First Nations in question want the U.N. body to examine Canada’s recent actions. Attawapiskat is a 2,000-person community of Mushkegowuk Cree on the western shore of James Bay. The IITC filed the request on February 10.
The Early Warning Procedure is one of several mechanisms available for filing complaints when a party suspects that a state has or is about to violate international human rights laws such as the International Convention on the Elimination of Racial Discrimination (ICERD).
“Indigenous Peoples, the Canadian government and the world will be paying close attention to the CERD’s consideration of a submission from the International Indian Treaty Council (IITC) and the Mushkegowuk People of Attawapiskat First Nation in Canada filed last week under the CERD’s Early Warning and Urgent Action Procedures,” IITC said in a statement, alleging that the bills—passed in June and December 2012—were put through without aboriginal consultation. The two bills, opponents claim, gut key environmental protections, in essence abrogating treaty rights. Bill C-45, by changing the way aboriginals can own land on reserves, also undermines treaties, opponents say.
The legal action is not without precedent. On January 8, Frog Lake and Mikisew Cree First Nations challenged the bills’ constitutionality in a Canadian court. That filing is still pending.
"These bills are a risk, not just for First Nations, but for all Canadians," said Mikisew Cree First Nation Chief Steve Courtoreille in a statement about the court filing. "Changes to the Fisheries Act, the Environmental Protection Act and the Navigable Waters Protection Act embodied in these omnibus bills dangerously reduce federal environmental protection for Canadian lands and waters, and have diminished or eliminated federal environmental assessment of resource development."
The Early Warning/Urgent Action request also addresses two other unresolved issues raised during the Universal Periodic Review of Canada at CERD’s 80th Session in February 2012: the ongoing lack of safe drinking water for First Nations and the housing crisis faced by Attawapiskat and other aboriginal communities. In its concluding observations addressing Canada on March 9, 2012, CERD had asked the Canadian government to provide a report within one year about its “progress and results” in addressing the water and housing situations. Such a report has yet to materialize, IITC said.
Spence ended a 45-day fast in protest of Canada’s actions on January 24, 2013, even though she had been thwarted in her insistence on a face-to-face meeting between First Nations leaders, Prime Minister Stephen Harper and Governor General David Johnston, the Crown’s representative in Canada. Instead, two separate meetings were held, one between 20 chiefs and Harper that Spence boycotted, and another, more ceremonial one between Johnston and more than 100 chiefs, including Spence. She said that both were disrespectful of the equal, government-to-government relationship that should exist between the three parties and must honor the treaties struck between the parties a hundred or more years earlier.
“How could the Crown and the Governor General close their eyes to the blatant violations of Treaty?” said Spence, explaining why she and the IITC had appealed for human-rights assistance. “We are giving them the opportunity to correct those actions and move forward in the true spirit and intent of Treaty, and [the Canadian Government] cannot even meet us halfway. In fact, they respond to us as though we are committing a criminal act for demanding the fulfillment and implementation of our rights. This is discrimination.”
ICERD, one of nine legally binding International Human Rights Treaties within the United Nations system, is responsible for periodically reviewing the compliance of the 175 countries, including Canada, that have ratified it. Guidelines for filing an Early Warning/Urgent Action request include: the presence of a significant and persistent pattern of racial discrimination, as evidenced in social and economic indicators; the adoption of new discriminatory legislation; encroachment on the traditional lands of indigenous peoples or forced removal of these peoples from their lands, in particular for the purpose of exploitation of natural resources, and polluting or engaging in hazardous activities that reflect a pattern of racial discrimination with substantial harm to specific groups.
The submission by IITC and the Mushkegowuk addresses all these areas. Ron Lameman of Beaver Lake Cree Nation, a member of IITC’s board of directors, expressed the importance of the filing for all Indigenous Peoples in Canada.
“The world needs to know of the total disregard shown by this government toward the Indigenous Peoples of this part of great Turtle Island,” Lameman said. “When you disregard the sacred Treaties and continue to disrespect our Mother Earth and all of creation, including the sacred water which sustains all life on the planet, there is no way that Indigenous Peoples can stand back and do nothing."